# Petition — ADAMS v. WAINWRIGHT (No. 83-5701)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1983

6880050060005 „„%%%%„%%% %%% %% %%% %%%
JAMES ADAMS,
Petitioner,
vs.
LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Respondent.

se, — S 8050086050580 088095908 8985 SS8S889880500500808°

PETITION POR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS POR THE ELEVENTH CIRCUIT

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida
224 Datura Street/l3th Floor
West Palm Beach, Flor tds 33401
(305) 837-2150

RICHARD . BURR, 111
Of Counsel

TATJANA OSTAPOF?P
MICBAEL A. MELLO
Assistant Public Defenders

Counsel for Petitioner

QUESTIONS PRESENTED
1. Whether the Sixth and Pourteenth Amendments permit the

Genial of a claim of ineffective assistance of counsel in @
capital sentencing trial -- on the basis of a presumption that
counsel provided effective assistance -- where the record shows
that counsel decided: (a) to present no evidence of sitigating
circumstances, despite the available but uninvestigated evidence
of very substantial mitigating circumstances; (b) to inform the
jury and the court in the sentencing trial that “{wje [the
defense] have no evidence"; and (c to present a closing argument
which conceded the persuasiveness of the reasons for imposing
Geath, provided no reasons for imposing life instead of death,
and apologetically asked the sentencer to “consider” imposing
life despite there being no reason he could think of for doing
20.

2. Whether the sentencing court's application of non-
premeditated felony surder as an aggravating circumstance
justifying the imposition of the death penalty conflicts with the

Court's recent pronouncement in Zant v. Stephens, U.S, „ 103

S.Ct. 2733, 2747 (1983), prohibiting capital sentencing tribunals
from treating as aggravating “conduct that actually should
militate in favor of a lesser penalty.”

3. Whether the Plorida courts’ procedural default rule,
which is haphazardly applied in capital cases, can serve as an
"independent and adequate state procedural ground“ under

Wainwright v. Sykes, 433 U.S. 72 (1977) and “hus bar federal

habeas corpus review of capital sentencing issues.

Questions Presented a PST E CCTV TTT TCCCTTT TTT TTT

Authorities Cited „ % % „ „ „ eee eee „% „% „ „ „ „% „ „ „ „„ „ „ „„ „ „ „ „ „6
Citat ions to Opinions Be low eee % 9 „ „% „ „ „ „ „ „ „ „ „ „4 „ „6 6 „„
Jurisdiction “eevee „% % % % % % F ‚—— r- „„ „ „ „ „ „ „ „ „ „„

Constitutional and Statutory Provisions
Involved eee „ „ „„ „ „% % „% „% „% „% % % % „% % % % „% „% % % „% % „% „% „ „ „ „ „ „ „ „ „ „6 „

Statement of the Case
A. Course of Prior Proceedings ...ccescccccccecece
B. Statement of Material FPact® ..ccssccecccsceees

How the Pederal Questions Were Raised and
Decided in the Courts Below see eneneeeeeneeeeneerenveee

Reasons for Granting the Writ

I. THE COURT SHOULD GRANT CERTIORARI TO
DETERMINE THE PROPER ROLE OF THE PRESUMPTION
Or ATTORNEY COMPETENCE IN THE ANALYSIS OF A
CLAIM OF INEPPECTIVE ASSISTANCE OF COUNSEL
IN A CAPITAL SENTENCING TRIAL, BECAUSE THAT
PRESUMPTION IS BEING UTILIZED TO DENY CLAIMS
OF INEPFPECTIVE ASSISTANCE--EVEN THOUGH
DEPENSE COUNSEL PRESENTED NO MITIGATING
EVIDENCE (DESPITE THE AVAILABILITY OP
SUBSTANTIAL MITIGATING EVIDENCE) AND ARGUED
IN EPPECT THAT DEATH WAS APPROPRIATE-~SOLELY
POR THE REASON THAT FORMER DEFENSE COUNSEL
HAS NOT (OR WILL NOT) ADMIT A PAILURE TO
INVESTIGATE OR OTHER DEFAULT IN HIS DUTY OF
REPRESENTATION. OOo

11. THIS COURT SHOULD GRANT CERTIORARI BECAUSE
THE LOWER COURT'S APPROVAL OF THE FELONY
MURDER AGGRAVATING CIRCUMSTANCE IN THIS CASE
DIRECTLY CONFLICTS WITH THIS COURT'S RECENT
PRONOUNCEMENTS In 5845 1 STEPHENS
CONCERNING THE WNECE
STATUTORY AGGRAVATING CIRCUMSTANCES ......++++

III. THE COURT SHOULD GRANT CERTIORARI TO
DETERMINE WHETHER FLORIDA'S HAPHAZARDLY
APPLIED PROCEDURAL DEFAULT RULE CAN BAR
PEDERAL HABEAS CORPUS REVIEW OF CAPITAL
SENTENCING Issues „ „% „% „ „„ „ „ „ „ „% „% „ „ „% „% „ eee „ „ „ „ „ „6 „»

Conclusion eevee % „% % ee % % ee eee evr Fwm. , eee ee eee ee

iii-iv
1
1

1-2

2-3
3-8

9-11

12-22

22-25

25-30
31

AUTBORITIES CITED
CASES CITED

Adams v. Wainwright, 709 P.24 1443 (llth Cir. 1963)

Adems v. State, 341 8. 20 765 (Pla. 1976),
cert. denied, 434 U.S. 878 (1977)

cert. denied, 439 U.S. 947 (1978)

Adams v. State, 380 8. 2d 421 (Pla. 1980)
Aldridge v. State, 351 So.24 942 (Pla. 1977)
Alvord v. State, 396 8. 2d 184 (Pla. 1981)
Antone v. State, 410 80. 2d 157 (Pla. 1982)
Armstrong v. State, 429 80. 2d 287 (Pla. 1983)
Barr v. City of Columbia, 378 U.S. 146 (1964)

County Court of Ulster County v. Allen, 442 U.s.
140 (1979)

Demps v. State, 416 80. 2d 608 (Pla. 1982)
Dobbert v. State, 409 80. 2d 1053 (Pla. 1982)
Douglas v. State, 373 60. 2d 895 (Pla. 1979)

Douglas v. Wainwright, 714 . 2d 1532 (llth Cir.
1983)

Eddings v. Oklahcaa, 455 U.S. 104 (1982)
Enaune v. Plorida, 9.8. 102 S.Ct. 3368 (1982)
Pord v. State, 407 80. 2d 907 (Fla. 1931)

Pord v. Strickland, 696 . 2d 804 (llth Cir. 1983)
(en banc)

Purman v. Georgia, 408 U.S. 238 (1972)
Gardner v. Florida, 430 U.S. 349 (1977)
Goode v. State, 365 80. 2d 381 (Fla. 1979)
Goode v. State, 403 80. 2d 931 (Pla. 1981)
Ball v. State, 420 80. 20 872 (Fla. 1982) .
Hargrave v. State, 366 80. 2d 1 (Fla. 1979)

Senry v. Wainwright, 666 . 20 311 (Sth Cir. 1982)
(Onit )

Jacobs v. State, 396 So.24 713 (Fla. 1981)

King v. Strickland, 714 F.2¢ 1481 (llth Cir. 1963)
LeDuc v. State, 365 8. 2 149 (Pla. 1978)

Lockett v. Ohio, 438 0.8. 586 (1978)

NcCampbell v. State, 421 So.24 1072 (Fla. 1982)
McCaskill v. State, 344 80. 2 1276 (Fla. 1977)

28,29

24,25

30
29
17,20,21
29

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
(1958)

Palmes v. State, 425 80. 2d 4 (Fla. 1983)

Pickens v. Lockhert, 714 F.24 1455 (8th Cir.
1983)

Proffitt v. Plorida, 428 U.S. 242 (1976)
Ruffin v. State, 420 680. 2d 591 (Pla. 1982)

Smith v. Balkcom, 660 P.2d 573 (Sth Cir. 1981)
(Unit B)

Smith v. State, 400 So.2d 956 (Pla. 1981)
Songer v. State, 322 80. 2d 481 (Pla. 1975)
Songer v. State, 419 80. 2d 1044 (Pla. 1982)
Stanley v. Zant, 697 r. 2d 955 (llth Cir. 1983)

State v. Dizon, 283 80. 2d 1 (Pla. 1973)
State v. Gillies, 662 P. 20 1007 (Ariz. 1983)

State v. Schad, 633 P. 20 366 (Ariz. 1981), cert.
Genied, 455 U.S. 983 (1982)

State v. Zarogoza, 654 P. 2d 22 (Ariz. 1983)
Straight v. Wainwright, 422 80. 20 827 (Pla. 1982)
Thomas v. State, 421 80. 2d 160 (Pla. 1982)
Wainwright v. Sykes, 433 U.S. 72 (1977)

Washington v. Strickland, 693 F.2d 1243 (Sth Cir.
S.Ct. 2451 (1983)

Washington v. Watkins, 655 f. 2d 1346 (Sth Cir.),
reh.denied, 662 F.2d 1116 (Sth Cir. 1981), cert.
denied, 456 U.S. 949 (1982)

Zant v. Stephens, 9.8. „ 103 8. ct. 2733 (1983)

STATUTES AND COURT RULES

Pla. Stat. 121.141

Pla. Stat. §921.141 (6) (4)
Rule 3.850, Florida Rules of Criminal Procedure

28 U.S.C. $1254 (1)

OTHER AUTHORITIES

Dressler, uri of th By Another:
nt, 0 e be

LaPave § Scott, Handbook on Criminal Law (1972)

28,29

12,18,
19,21

27,28,29
29

10,11,26,
28

18,21,22

26

9,22,25 ™

24

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1963

SSSSSSSSSSSSSSSSSSSCSSSSSSSSHESSESSSESSSSSSESSSSESSESESESESEE EEE EEE SESS
JAMES ADAMS,
Petitioner,
vs.

LOUIE L. WAINWRIGAT, etc.,
Responder.

PETITION POR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS POR THE ELEVENTH CIRCUIT

Petitioner, JAMES ADAMS, prays that a writ of certiorari
issue to review the judgment of the United States Court of
Appeals for the Eleventh Circuit filed July 18, 1983. Rehearing
was denied on September 12, 1983.

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals is reported at 709 P.2d
1443 (llth Cir. 1983), and is set out at pages la-8a of the
Appendix.! The order denying rehearing is set out at App. 9a.

JURISDICTION

The judgment and opinion of the court of appeals were filed
on July 18, 1983, and petitioner's timely petition for rehearing
was denied on September 12, 1983. Jurisdiction of this Court is
invoked under 28 U.S.C. §1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the sixth amendment to the Constitution
which provides in relevant part:

In all criminal prosecutions, the accused shall
enjoy the right ... to be confronted with the
witnesses against him ... and to have the
assistance of counsel for his defense;

1 Citations to the Appendix accompanying this petition are
designated p

-l-

ee

the eighth emendsent to the Constitution which provides in
relevant pert:
Excessive bail shell not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted;
and the fourteenth amendment to the Constitution which provides
in relevant part:
[Njor shall any State deprive any person of
life, liberty, or property, without duc process
of lew ...«-
It also involves Section 921.141, Florida Statutes (1973), which
is set out at App. 102-112.

STATEMENT OF THE CASE

A. Course of Prior Proceedings

Petitioner was indicted for ficst degree murder in St. Lucie
County, Plorida on December 11, 1973, solely upon & theory of
felony murder and not upon & theory of premeditated intent.
(R. 6-7)2 He was thereafter convicted of first degree felony
murder on March 15, 1974, and was immediately thereafter
sentenced to death.

Petitioner appealed his conviction and sentence to the
Supreme Court of lor tds, and both were affirmed. Adams v.
State, 341 8.24 765 (Pla. 1976) (Boyd and Hatchett, Judes

dissenting), cert. denied, 434 U.S. 878 (1977). [This opinion

is set out at App. 12a~1l7a.)

Thereafter, pursuant to this Court's decision in Gardner v.

Plorida, 430 U.S. 349 (1977), petitioner filed an application for

relief in the Supreme Court of Florida. The application was

2 peferences to the record in the courts below will be abbreviated
as follows:

“9,° the transcript of the trial in the circuit
Court of the Nineteenth Judicial Circuit of
Plorida, March 12-15, 1974;

“a,” the record on direct appeal to the Supreme
Court of Plorida from the judgment of
conviction of first-degree murder and
sentence of death;

"pct," the transcription of the evidentiary hearing
on petitioner's moticn for post-conviction
— in the state trial court, January 25,
1 .

Genied. Adams v. State, 355 80. 2d 1205 (Pla. 1978), cert.
denied, 439 U.S. 947 (1978). {This opinion is set out at App.

18a-1$a.)
Petitioner then commenced and prosecuted state post-
conviction and federal habeas corpus proceedings. His motion for

post-conviction relief pursuant to Pla.R.Crim.P. 3.850 was denied

by the Circuit Court in St. Lucie County, and that order was

afficmed by the Supreme Court of Florida. Adams v. State, 380

$0.24 423 (Pla. 1980) [This opinion is set out at App. 20a-22a.)
He then filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of
Plorida. Pollowing the denial of this petition in an unreported
order and opinion [which is set out at App. 23a-32a)], petitioner
appealed to the United States Court of Appeals for the Eleventh
Circuit. On July 18, 1983, a panel of the Eleventh Circuit
affirmed the District Court's denial of habeas corpus relief.

Adams ». Wainwright, 709 r. 2d 1443 (llth Cir. 1983) [App. la-8a).

On Avgust 8, 1983, a timely petition for rehearing and
suggestion for rehearing en banc was filed in the Eleventh
Circuit concerning the panel opinion. Rehearing was denied by
order, dated September 12, 1983. (App. 9a)

B. Statemen* of Material Pacts

The evidence at trial showed that on the morning of November
12, 1973, ger Brown was found injured in his home (r. 441).
Apparently the perpetrator had entered the residence unarmed
while no one was in the house (T. 267, 324-325, 442-446).
Sometime later the decease. returned home and discovered the
perpetrator (T. 241, 324-325). There was a struggle, during
which the deceased received injuries from a fireplace poker kept
in the hcuse. He died the next day.

The State presented evidence that a car like that owned by
Mr. Adams was seen at the deceased's home the morning the crise
occurred (r. 325, 358). Mr. Adams’ car was located later thet
Gay at a paint and body shop where he had left directions that it
be repainted (r. 524), a course he had been considering sonths
earlier (T. 865, 930). Mr. Adams established that his vehicle
hed been driven the morning of the offense et shout 10:00 or

e Oe — ee BA see,

10:15 a.m., one-half hour before the assault on the deceased (T.
352), by his friend, Vivian Nickerson, and another san, Willies
Crowley (r. 861, 862, 938). ‘The trunk of the car was defective
and could be opened without a key (T. 881).

The only State witness who saw a man leave the Brown house
did not identify Mr. Adams even though the witness conversed with
the person he saw. In fact, he said that person was blacker than
Mr. Adams (T. 366). The witness had heard a woman's voice before
seeing the man (T. 365).

Both the State and the defense presented evidence showing
that on November 12, 1973, Mr. Adams was in the process of moving
back to his wife's house from a friend's house where he had been
staying during a short separation (T. 634). Mr. Adams testified
that he transferred his belongings from the friend's house to his
car and then to his wife's car (r. 865). In his wife's car,
which was searched after Mr. Adams was arrested on the instant
charge, were found several items identified as belonging to Edgar
Brown or members of his family (T. 648, 808, 810, 812, #16, 822).
Mr. Adams had approximately $200 on his person at the time of his
arrest on November 12, 1973 (T. 586), although State witnesses
testified that the deceased always carried between $700 and $1000
cash, which was missing when he was found (r. 615).

Throughout pre-trial and trial proceedings, Mr. Adams
consistently denied any involvement in the homicide of Edgar
Brown. During the guilt-innocence trial, he testified in great
Getaii concerning his activities during the time of the homicide,
none of which put him anywhere near the Brown residence (T.
837-927). Prior to the imposition of his death sentence, after
the trial judge asked Mr. Adams if he had anything to say, Mr.
Adams responded, “All I would like to say one thing, Mr. Brown's
murderer is still out there. I didn't do it.” (T. 1192)

At the close of the evidence in the guilt-innocence trial,
prior to closing erguments, a charge conference wes held. During
this conference, both the trial judge and the prosecutor agreed
thet there was no premeditation involved in this thing.*
(r. 1004) The prosecutor further declared that this was a case

Z ˙ ll N eS 1

“where premeditated intent or design is not involved. (T. 1006)
Accordingly, the trial judge determined that he would instruct
the jury only on felony murder. (T. 1015)

Thereafter, the prosecutor argued to the jury that

the issue in this case is one thing. It is for

you to determine whether or not James Ad ass,

while he was engaged in the perpetration or the

attempt to perpetrate a robbery did kill Edgar

Brown here in St. Lucie County on November 12,

1973. I submit to you that that is the sole

issue for you to decide.
(T. 1050) Consistent with the determination in the charge
conference and with the prosecutor's argusent, the Court then
instructed and subsequently reinstructed the jury that it could
return a verdict of guilty of first degree murder only upon @
finding that petitioner had killed the deceased during a robbery
or attempted robbery “even though there is no premeditated design
or intent to kill." (r. 1126, 1145)

At the penalty trial, the State adduced evidence that Mr.
Adams had been convicted of rape in 1963 in Tennessee, and was
sentenced to 99 years in prison for that charge. Also placed in
evidence was testimony that Mr. Adams escaped from prison in 1972
(T. 1163-1174). The sole witness to these facts was Sheriff
Cribbs of Dyer County, Tennessee, who was permitted to identify

Mr. Adams using pictures and fingerprints taken at a Tennessee

police station in 1956.

On behalf of Mr. Adams at the penalty trial, defense counsel
said, “we have no evidence.* (T. 1175) The only other presenta~
tion by the defense during the penalty trial consisted entirely
of the following one minute closing argument:

May it please the Court. Ladies and gentlemen,
you have heard all the evidence and you have
found James Adams to be guilty of first degree
murder.

1 understand how Mrs. Brown felt during her
testimony, recalling the testimony in which she
saw her husband lying there in the condition he
was. I understand Mr. Brown's reputation in
the community. I think you understend the
situation. You have heerd all the evidence.

The only thing we can ask you here today is to

consider whether or not the death ty is
opprepe tose in this cese. Wow, Ploride
Legislature has declared in its infinite wisdos

appropriately advise the Court that this man

should be put to death and yet I find it

necessary to ask for you to consider that you

save his life in spite of all this and let this

man live, for no other reason than that he is a

man. Thank you.
(1. 1175-116003

At the hearing on Mr. Adams’ motion to vacate, two witnesses

testified. The first was Bruce Wilkinson, who had served as
co-counsel in a support capacity during Mr. Adams" trial and who
had represented Mr. Adams in subsequent clemency proceedings. Mr.
Wilkinson testified that the trial judge told mr. Adams’ trial
attorney during an unreported conference in chambers that he was
limited in the presentation of mitigating circumstances to those
enumerated in the statute and that nothing else would be allowed
(PCT. 14). Trial counsel had confirmed Mr. Wilkinson's recol-
lection in a conversation with the latter (PCT. 14). Mr.
Wilkinson was thoroughly familiar with the trial file, which
detailed substantial investigation as to the guilt phase of Mr.
Adams’ trial (PCT. 14-15, 22-24). But there was no specific
delineation of any matter which was considered for the penalty
phase, even though Mr. Wilkinson readily discovered, in his own
investigation for the clemency proceedings, evidence which was
available at the time of trisl, which could have been presented
in mitigation of sentence, but which, inexplicably, was not. This
evidence included the circumstances of Mr. Adams’ background:
that he was one of eleven children of sharecroppers in rural
Tennessee, who was required to begin working at about 10 years of
age to help support the family. He received little or no
education, since he was allowed to attend school only when it
rained, and was consequently illiterate. When Mr. Adams was 16,
his feather died and he became the head of the household, working
two or three jobs simultaneously to support his smother, and the
other children who remained et home. He continued working until
he was charged with rape when he was 28 (PCT. 30-31). Also

aveilable et the time of triel wes local information thet fr.

3 wot isingly, the jury thereafter recommended (T. 1188), end
the ei (tT. 1193), „ @eeth sentence. Among the
findings relied upon by the judge in Ir
commission * murder in the course of commission of «
robbery CR. .

1 en

A TLD
Adams was active in the church and counselled children (PCT. 25,
31), and evidence that Mr. Adams had a good employment record
while in Port Pierce (PCT. 23).

Moreover, although Mr. Adams had testified at trial in
response to the State's cross-examination that he had “five or
more “convictions (T. 926), Mr. Wilkinson readily discovered
that only the 1962 rape conviction was even superficially legal
(PCT. 15, 16). Two other misdemeanor convictions--all that there
was record of--had been uncounselled and there had not been an
offer of counsel. And one of those convictions was for the 1956
larceny of a pig Mr. Adams and his brother had taken for food
(PCT. 16, 18, 26). {The trial judge had relied upon Mr. Adams’
erroneous testimony in justifying the sentence of death (R. 84).)

In addition Mr. Wilkinson testified that he discovered that
Mr. Adams’ rape trial was before a jury which may well have been
the product of racially selective procedures. In any event, all
the jurors were white, and the courtroom was racially segregated;
Mr. Adams’ family had to sit in the balcony. Mr. Adams hiaself
was shackled throughout the trial, although there was no indica-
tion he acted in a way which would have justified such a prejud-
icial treatment, which was apparently standard procedure (PCT.
20-21).

Pina.ly, Mr. Wilkinson determined that Mr. Adams’ prison
record in itnnessee was excellent: indeed, he had been on
trustee status assigned to a women's correctional institution.
There was no violence involved in his escape, which occurred when
he drove away in a State vehicle to which he had free access
because of his status. (PCT. 27)

Also testifying at the hearing was Richard Lubin, a criszinal
Gefense attorney with substantial experience in capitel trials,
who opined thet mr. Adems' defense counsel at trial did not
render effective essistance because of his failure to sdequetely
investigate and prepare mitigation for the penalty phase, coupled
with his totally ineffectual closing argument and his feilure to
challenge the rape conviction, exzplein Sr. Adems' cristina!
record, or object to certein inflemmeatory remarks sede by the
prosecutor during his closing summation (PCT. 54, 62-63, 70-71).

-J-

eae

with no further hearing having been held in federal court,

it is upon the foregoing facts that the death sentence and death

sentencing procedure for James Adams have been approved.

I N THE BELOW
1. Mr. Adams first raised his claim that he had been denied

effective assistance of counsel in his sentencing trial in state
post-conviction proceedings pursuant to Pla.R.Crim.P. 3.850. on
the appeal to the Florida Supreme Court in these proceedings, the
Court rejected ur. Adams’ claim that counsel was ineffective for
his failure to investigate and present available mitigating
evidence on the following basis: “it is our view that the
mitigating and ameliorating evidence suggested in appellant's
allegations would not have affected the sentence, and was, in
fact, already negated to a large extent by the appellant's own
testimony during the guilt-innocence portion of the trial.*
(App. 22a) Mr. Adams raised the same claim in his federal
habeas petition 1200) of the petition], and the Gistrict court
rejected the claim for essentially the same reason as the Florida
Supreme Court. (App. 30a) Pinally, Mr. Adams presented this
claim as one of the issues on his appeal to the Eleventh Circuit.
The Eleventh Circuit's disposition of the claim is discussed at
length in the “Reasons...” section of the petition.

2. Mr. Adams first raised on direct appeal to the Florida
Supreme Court his claim that the felony murder basis of his
conviction entitled him to have the non-intentional-homicide
finding associated with that conviction considered as mitigating
against death. (Appellant's Second Supplemental Brief, Case No.
45,450, at 8-13)4 The Plorida Supreme Court nonetheless
approved, without discussion, the consideration of the felony
murder aspect of the homicide as an aggravating circumstance.
(App. 16a) Mr. Adams raised the same claim in his federal habeas
corpus petition [412(a) of the petition], and the district court

rejected the claim:

4 In the state courts and the federal courts--until this Court's
decision in Zant . Stepnens — 0.8. „ 103 2. Ct. 2733 (1983)
— Mr. Adams rais 7 issue primarily as a death-is-dispro-
portionate issue because of the non-intentional aspect of the
murder. Only after Zant did he include expressly the clais that
the felony murder s 1d have been considered a mitigating
circumstance. However, the argument--that pure“ felony surder is
a mitigating circumstance instead of an aggravating circumstance
— was contained within ail of his "“death-is-disproportionate”
presentations of the issue. Thus, he submits that the issue as
framed is properly raised herein.

-9-

Petitioner's contention that the death penalty

is being imposed as punishment for a non-

deliberate killing in this case is erroneous.

The deliberateness of the act is presumed from

the evidence at petitioner's trial that the

beating that resulted in the victim's death

occurred during the perpetration of a robbery.

The felony surder rule simply obviated the

necessity of proving the defendant's state of

mind.
(App. 24a) Finally, Mr. Adams presented this claim as one of the
issues on his appeal to the Eleventh Circuit. The Eleventh
Circuit held that death is not disproportionate for the actual
killer in a felony murder homicide, without regard to whether the
killer actually intended to kill. (App. 4a-Sa) On rehearing,
Mr. Adams raised the Zant aspect of this issue--that even if
Geath is not disproportionate for a pute“ felony murder (one for
which the conviction is solely for felony surder, not for both
premeditated and felony murder), the lack of actual intent to
kill must at least be considered as mitigating and not aggrava-
ting -- and rehearing was denied without opinion. (App. 9a)

3. Mr. Adams first presented his claim that the trial judge
improperly limited the consideration of mitigating factors to
those enumerated in the death penalty statute in his state
post-conviction proceedings. On the appeal to the Plorida
Supreme Court in these proceedings, the court focused only on
that aspect of this claim regarding the trial judge's exclusion
of potential evidence of nonstatutory mitigating factors. (App.
2la) In his federal habeas corpus petition, Mr. Adams raised
both aspects of this claim again--arguing that his Eighth and
Pourteenth Amendment rights were violated by both the exclusion
of potential evidence of nonstatutory mitigating circumstances
and the restriction of the jury's consideration of mitigating
factors, to those enumerated in the statute, in the penalty trial
charge to the jury [412(b)(3) of the petition). Although the
state argued that review of the jury instruction aspect of this

issue was barred under Wainwright v. Sykes, 433 U.S. 72 (1977)--

by virtue of no objection having been made to the instructions at
trial--the district court reached the merits: “The judge tracked
the language of the statute in charging the jury, and did not
instruct the jury not to consider other nonstatutory mitigating

-10-

factors." (App. 26a) Mr. Adams raised this issue on his appeal
to the Eleventh Circuit, but the court refused to review the
merits of the issue because of the procedural default in raising
the issue. (App. 6a-7a) Prior to the publication of the
Eleventh Circuit's opinion, however, Mr. Adams had sought the
court's leave to file a supplemental brief arguing that Plorida's
procedural default rule was so inconsistently applied to the
state court's review of capital sentencing issues that it could
not bar federal review under Sykes. Although the motion was
Gisallowed, the court did permit this brief to be considered in
connection with Mr. Adams" petition for rehearing. Rehearing,

however, was denied without opinion. (App. 9a)

-ll-

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE THE

PROPER ROLE OF THE PRESUMPTION OF ATTORNEY COMPETENCE

IN THE ANALYSIS OF A CLAIM OF INEFFECTIVE ASSISTANCE OF

COUNSEL IN A CAPITAL SENTENCING TRIAL, BECAUSE THAT

PRESUMPTION IS BEING UTILIZED TO DENY CLAIMS or

INEPPECTIVE ASSISTANCE--EVEN THOUGH DEFENSE COUNSEL

PRESENTED NO MITIGATING EVIDENCE (DESPITE THE AVAIL-

ABILITY OF SUBSTANTIAL MITIGATING EVIDENCE) AND ARGUED

IN EPPECT THAT DEATH WAS APPROPRIATE--SOLELY POR THE

REASON THAT PORMER DEFENSE COUNSEL HAS NOT (OR WILL

NOT) ADMIT A PAILURE TO INVESTIGATE OR OTHER DEFAULT IN

HIS DUTY OF REPRESENTATION.

The Eleventh Circuit's approval of James Adams’ capital
sentencing trial and resulting death sentence--over his claim
that counsel provided ineffective assistance in that trial--is a
grave miscarriage of justice. The sole reason for this injust-
ice, as will be demonstrated in the succeeding paragraphs, is the
uncontrolled and arbitrary operation of the principle that
attorneys are presumed to be competent. The Court should grant
certiorari to determine (a) whether this presumption should
operate at all once “a defendant who claims his lawyer was
ineffective [has] come forward with specific complaints about
what the lawyer failed to do, and with specific arguments about

how this failure hurt his case, Stanley v. Zant, 697 f. 2d 955,

974 (llth Cir. 1983) (Arnold, J., dissenting), and (b) if it is
to operate beyond this point, to what specific issues it applies
and how, in relation to those issues, it can be rebutted.

To enable the Court to appreciate fully the gravity of the
injustice done to Mr. Adams--and consequently the extraordinary
‘mportance of granting certiorari to rectify this injustice to
him and to prevent its systematic recurrence in other cases-~a
review of Mr. Adams’ sentencing trial is necessary. Through the
incorporation of the evidence adduced in the guilt-innocence
trial (r. 1175) and the presentation of additional evidence in
the sentencing trial (T. 1163-1174), the state presented suff-
icient evidence to persuade the trial judge to find

that aggravating circumstances, far outweighing
any mitigating circumstances, are as follows:

1. The capital felony of murder in the
first degree was committed by the defendant,
James Adams, while he was under sentence of
imprisonment for 99 years by the Court of
General Sessions, Dyer County, Tennessee after
a conviction on the charge of rape.

~12-

ne

2. The defendant was previously con-
victed of a capital felony, same being the
charge of rape above referred to and being @
felony involving also the use or threat of
violence to the person.

3. The capital felony of murder in the
first degree was committed while the defendant
was engaged in the commission of or in an
attempt to commit the crime of robbery.

4. The capital felony of murder in the
first degree was committed for the purpose of
avoiding or preventing = lawful arrest.

5. The capital felony of murder in the
first degree was committed for pecuniary gain.

6. The capital crime of murder in the
first degree was especially heinous, atrocious,
and cruel.

By his own admission the defendant was
previously convicted of crimes on at least five
occasions and the further undisputed evidence
shows the defendant has & record invoiving
crimes of violence; that he is an escapee of
the State Prison Systes of the State of
Tennessee and that the body of the victim was
mutilated, mangled and disfigured unnecess~-
arily.

(R. g4-85)° To counter the evidence of these aggraveting

factors, Mr. Adams’ counsel declared, before the jury and the

judge in open court, “we have no evidence.” (7. 1175) while

counsel might have qualified this declaration by saying, "we have

no new evidence fol loved by an explanation that the evidence of

guilt left enough room for doubt about Mr. Adams’ actual guilt

that death should not be imposed [see Smith v.- Balkcom, 660 F.2d

573, 580-581 (Sth Cir. 1961) (Unit B) (recognizing that residval

doubt about guilt, which is insufficient to be *reasonable”* doubt

and foreclose conviction, can de @ significant mitigating

factor))}--counsel did not do so. Instead, he informed the jury

and the court that he had no evidence to present, and thereby

gave the impression that there was no aitigating evidence.

Shortly thereafter, counsel strengthened and reconfirmed

this impression in his one-minute closing argument in support of

why the jury should recommend life imprisonment. Far from being

an argument in support of life, the argument was an apology to

the court for having to ask for life in the face of such @

5 py approving only the trial judge's finding of the aggravating
circumstances enumerated as 1, 2, 3, and 6 in these findings, the
Plorida Supreme Court impliedly held that circumstances 4 and

should not have been found.

as -13-

Geath-appropriate case. Counsel opened his argument by allying
himself with the horror felt by the victia’s wife and the outrage
felt by the community at the homicide of such s prominent
citizen. (T. 1179-1180) Counsel then referred to the wisdom of
the legislature in providing for @ death penalty and to the
state's position and evidence supporting its position that Ar.
Adams should appropriately be put to death under this statute.
(1. 1180) men, without any reference to evidence in support of
the view that life imprisonment should be imposed, he concluded,

ee I find it necessary to ask for you to

consider that you save his life in spite of all

this end let this man live, for no other reason

than that he is a gan.
(1. 1160/6 Counsel thus gave the trial court no reason to impose
life instead of death, conceded the strength of the reasons for
imposing death, and apologetically, asked for the imposition of
life despite there being no reason he could think of for doing
so.

Not surprisingly (from a lawyer who would represent @
capital defendant in this manner), when he was faced with @ clais
that the foregoing amounted to ineffective assistance in state
post-conviction proceedings, Mr. Adams’ trial counsel refused to
cooperate with post-conviction counsel. Nonetheless, through the
effort of capital sentencing issues in Plorida that can
serve as an “independent and adequate state procedural ground“

under Wainwright v. Sykes.

The opinions of the Plorida Supreme Court in the Rule 3.850
appeals of capital defendants over the past four years reveal an
almost pathological approach-avoidance conflict to the procedural
default rule. In some Rule 3.850 cases that have raised errors
in the consideration of aggravating and mitigating circumstances
or in the scope of the circumstances considered, the Plorida
court has flatly refused to reach the merits of the issues

presented because of procedural default. See Alvord v. State,

396 80. 2d 184 (Pla. 1981); Smith v. State, 400 80. 2d 956, 958-959

(Pla. 1981); Goode v. State, 403 80. 2d 931, 932 (Pla. 1981);

pobbert v. State, 409 80. 2d 1053, 1058 (Pla. 1982); Demps v.

State, 416 80. 2d 808, 809 (Pla. 1982); Songer v. State, 419 80. 2d

1044, 1047 (Pla. 1982). In other cases raising the same issues
in precisely the same posture, however, the court has reached the
merits of the issues without any reference at all to a procedural

default bar. See Douglas v. State, 373 80. 2 895, 896-897 (Fla.

1979); Adams v. State, 380 80. 2d 423, 424 (Pla. 1980); Demps v.

-28-

State, supra, 416 80. 20 at 90911 nuffin v. State, 420 80. 24 591,
594 (Pla. 1982); Ball v. State, 420 80. 2 872, 873 (Pla. 1982).

In some 3.850 cases raising errors in the penalty trial instruc-
tions concerning the scope of the aggravating or mitigating
circumstances (as in Mr. Adams’ case) or the manner in which
aggravating and mitigating circumstances sust be weighed agsinst
each other, the Florida court has also flatly refused to reach
the merits of the issues because of procedural default. See

Smith v. State, supra, 400 80. 2d at 958-959; Goode v. State,

supra, 403 80. 2d at 932; Pord ». State, 407 So.24 907, 908 (Fla.

1981); Antone ». State, 410 80. 2d 157, 163 (Pla. 1982); Thomas v.

State, 421 80. 2d 160% 162 (Pla. 1982). Yet in other cases
raising precisely the same instructional errors in precisely the
same posture, the court has reached the merits of the issues
without mentioning the procedural default “rule.” See Hall v.

State, supra, 420 So.2d at 874; Straight v. Wainwright, supra,

422 So.2d at 831. There can be only two explanations for this
inconsistency: the Plorida Supreme Court has acted arbitrarily
or there is no procedural default rule with respect to capital

sentencing issues.!2 under either theory, the federal courts

11 In Demps, the court refused on procedural default grounds to
reach another similar issue respecting the scope of mitigating
circumstances admitted into evidence.

12 the Plorida Supreme Court has recently provided a partial, though
Catch-22-like explanation for the inconsistency among these
rulings. Since the effective date of the current death penalty
statue, as this Court recognized in Proffitt v. Plorida, the
lor ide court has consistently held that Tt has an independent
duty to review the propriety of the imposition of the death
penalty in connection with the direct appeal of each capital
case. See, e.g. State v. Dizon, 283 So.24 1 , 10 (Pla. 1973);

Songer v. State, 322 50.20 4601 (Pla. 1975); aldr idge v. State,
74 $42, 944 (Pla. 1977); Sargrave v. ate,

* . *
4-5 (Pla. 1979); acc 11 v. State, * 72, 1074 (Pla.
1982). This 1 duty requires the court to “examine the
record to be sure that the imposition of the death sentence
complies with all the standards set by the Constitution, the
legislature and the Courts." Goode v. State, 365 80. 20 361, 384
(Pla. 1979). In the exercise of this Independent duty on direct
appeal, therefore, the court can and does review any issue
concerning the penalty trial even though that issue has not been
raised by the parties. See, e.g., LeDuc v. State, 365 8. 2 149,

150 (Pla. 1978); Goode v. State, 365 50.20 at 384; Jacobs v.
State, 396 80. 2d 715, 717-7108 (Fla. 1981).

The catch is this: In two cases decided this year, the Plorida
court explained that the independent review conducted on direct
appeal has sometimes included penalty trial issues which were not
raised. Thus, when the petitioner raised such issues for the
first time in Rule 3.850 proceedings, the court rejected them on
the ground that they had already been determined — albeit sua
sponte and without direct reference -- on direct appeal. Palmes

-23-

should reach the merits of any capital sentencing issue for which
state remedies have been exhausted because there is no “adequate”
state ground. 13

Accordingly, certiorari should be granted to resolve this
critical question. The determination of a capital sentencing
issue on its merits can mean the difference between life and
death. Without a resolution by this Court, some capital defend-
ants may live because in their cases, the Plorida courts did not
find a procedural default on issues raised for the first time in
collateral proceedings. At the same time, others may die because
in their cases, the Plorida courts did find a procedural default
on the very same issues raised in the very same procedural
posture. The lightning-like arbitrariness of Plorida's procedural
default “rule” cannot therefore be sanctioned, because it results

in the same random cruelty condemned in Purman v. Georgia, 408

U.S. 238 (1972).

v. State, 425 80. 2d 4, 6 (Pla. 1983); Armstrong v. State, 429
. Id 787, 288-289 (Pla. 1983).

13 despite its en banc decision in Ford z. Strickland, 696 r. 24 804
(llth Cir. 1983), upon which the Eleventh Circuit based its
disposition of this instructional issue in Mr. Adams’ case, the
Eleventh Circuit (acting as Unit B of the Pifth Circuit) had
previously recogcized that in death cases, the Florida Supreme
Court exercises a special scope of review enabling them to excuse
procedural defaults." Henry v. Wainwright, 686 . 2d 311, 314
(Sth Cir. 1982) (Unit B). 12 . in part, led the
court to reaffirm the propriety of its decision on the merits of
the issue presented in Henry, despite a question concerning
procedural default under Florida's procedural default rule.

Thus, to the extent that the court, acting as the Pifth Circuit
(Unit B), has already adopted, in Henry, the principle which mr.
Adams now urges this Court to cons r, there is a conflict
between “circuits* also in need of resolution.

CONCLUSION

Por the reasons expressed herein, the petition for a writ of

certiorari should be granted.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida
224 Datura Street/l3th Ploor
West Palm Beach, Florida 33401
(305) 837-2150

TATJANA OSTAPOFPF
MICHAEL A. MELLO
Assistant Public Defenders

RICHARD RN. BURR, III
Of Counsel

—

* Kichad U Yu. T

—

Counsel for Petitioner

October 31, 1983

. | RECEIVED |
. 893-5701 * 4

7 „ Ut

IM THE |_ SUPREME romaT Hs

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

JAMES ADAMS,
Petitioner,

vs.

LOUIE L. WAINWRIGAT,etc.,
Respondent.

MOTION POR LEAVE TO PROCEED IN PORMA PAUPERIS

The Petitioner, JAMES ADAMS, who is imprisoned on Plorida’s
Death Row, asks for leave to file the accompanying Petition for
Writ of Certiorar: without pre-payment of costs and to proceed in

forma pauperis pursuant to Rule 46 of the Rules of this Court.

Petitioner proceeded in forma pauperis at all times in the state

and feceral courts below. Undersigned court-appointed counsel

has at all times represented Mr. Adams. Petitioner has attached

hereto his affidavit in substantially the form prescribed by Ped.

Rules App. Proc., Porm 4, and the Rules of this Court.
Respectfully Submitted,

RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Plorida
224 Datura Street/l3th Ploor
West Pals Beach, Flor ide 33401
(30S) 837-2150

„C

RICHARD H. BURR, III
Of Counsel to the Public Defender

Counsel for Petitioner.

} RECEivep

wo. ¥3-S701 NOV 1 6.1983
rr
IN THE rr

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

JAMES ADAMS,
Petitioner,

vs.
LOUIE L. WAINWRIGHT,etc.,
Respondent.

APPIDAVIT IN SUPPORT OF RE-UEST TO PROCEED IN PORMA PAUPERIS

I, JAMES ADAMS, being first duly sworn, depose and say that
I am the petitioner in the above entitled cases; that in support
of my motion to proceed without being required to prepay fees,
costs or give security therefor, I state that because of my
poverty I am unable to pay the ccsts of said proceeding or to
give security therefor; that I believe I am entitled to relief.

I further swear that the responses which I have made to
questions and instructions below are true.

1. Are you presently employed? yes I No Ta)
a. If the answer is “Yes", state the amount of your salary
Or wages per month, and give name and address of your employer.

d. If the answer is “No”, state the date of last employment
and the amount of the salary and wages per month which you
received. 22

2. Have you received within the past twelve months any money
from any of the following sources?
a. 3 profession or from self employment? res
No |
d. Rent payments, interest or dividends? Yes [| } No 1%
c. Pensions, annuities or life insurance payments? res
No [
4. Gifts or inheritance? Yes,[ I No [ }
e. Any other sources? res 1% wo [ }
If the answer to any of the above is yes, describe each
source of money and state the amount received from each during
the past twelve months.

Zs Zs 2 Fi we

3. Do you own cash, or do you have money in a checking or saving
account? Yes [ No II (Include any funds in prison accounts)
If answer is yes, state the total value of the items

owned. Pesan Acsauat £100.

4. Do you own any real estate, stocks, bonds, automobiles, or
other valuable property (exclyding ordinary household furnishings
and clothing)? Yes [ } Wo [|

If the answer is yes describe the property and state its
approximate value.

5. List the persons who are dependent upon your support, state
your relationship to those persons and indicate how much you
contribute toward their support. Nave

I understand that a false statement to any questions in this
affidavit will subject me to penalties for perjury.

“I declare under penalty of perjury that
the foregoing ig true and correct.

EXECUTED on ys hey ¢/7p

Date

—

9 — 4”
(SighSture)

STATE OF FLORIDA )

COUNTY OF BRADPORD )

JAMES ADAMS being first duly sworn under oath, presents that
he has read and subscribed to the above and states that the
information therein is true and correct.

—
—

ra ——— — —

2 hai
Signature of Petitioner

2)

SUBSCRIBED and SWOHN to before me this . day of K 1983.

{ / i
4 1 |
LV y “4 —
2 NOTARY PUBLIC j

r

My Commission Expires:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1695%3A1. Public record. Not legal advice.